INTRODUCTION
Recently in the Netherlands, the issue of Nazi-looted art again raised attention.Footnote 1 From 12 May until 27 August 2017, a special exhibition entitled Looted Art before, during and after World War II was on display at the Bergkerk, which is situated in Deventer, the Netherlands. The exhibition was an attempt to tell “the story of Jewish art dealers and private individuals whose artworks fell into German hands during the Second World War.”Footnote 2 The works on display are on loan from the Dutch national art collection, Dutch museums, and also from families that have successfully reclaimed artwork. Although the Dutch efforts in restituting Nazi-looted art since the turn of this century have been internationally recognized and praised, some critical remarks were made in the wake of this exhibition. The New York Times covered the exhibition on 12 May 2017 in an article entitled “Are the Dutch Lagging in Efforts to Return Art Looted by the Nazis?”Footnote 3 Although the Dutch attitude towards restitution is described as “enlightened,”Footnote 4 the article conveys the existence of international concerns about recent developments in Dutch restitution policy since it has become stricter than it was before.Footnote 5 The criticism focuses on the fact that this policy allows weight to be given to the interests of a museum—that is, the significance of a work to public art collections—against the emotional attachment of a claimant. This balance of interests is questioned on the grounds that it discards past injustices and could mean that a “good claim” does not lead to restitution “nor any other remedy.”Footnote 6
It is this criticism that relates to the core argument of this article. I will argue that there has been a paradigm shift in dealing with Nazi-related injustices. Generally, the legalist paradigm has been exchanged for a victim group-oriented paradigm infused by moral considerations.Footnote 7 As a consequence, individual court-based adjudication has gradually been replaced by a morally induced approach where mere membership in a category of victims may lead to lump sum compensation. This has been the case with regard to, for example, the financial loss suffered by Jewish victims or their heirs as a consequence of the Holocaust or their treatment in the postwar period.Footnote 8 The same development can be seen in regard to the special category of Nazi-looted art. Dealing with Nazi-looted art cases on the basis of a strictly legal paradigm (with its statutes of limitation, burdens of proof, and so on) is also increasingly considered to be morally unacceptable.Footnote 9 New venues have been found to handle the upsurge of Nazi-looted art claims since the 1990s.Footnote 10 However, for reasons that will be explained later in this article, it seems impossible to abandon the legalist paradigm completely when remedying historical injustices in the specific category of Nazi-looted cultural objects. This results in a state of constant tension with respect to how the new venue proceeds in the Netherlands. This article, by making a comparison with the situation in the United Kingdom (UK) will furthermore show that this is a problem that goes beyond borders. In this new victim group-oriented paradigm, recognizing and addressing the suffering caused by the traumatic nature of past crimes is the principal aim.Footnote 11
To begin, the two paradigms as introduced above will be touched upon in relation to the specific category of looted art. Second, the main characteristics of the newly founded restitution venues—that is, advisory panels or bodies—of the Netherlands and the UK will be discussed briefly. The main focus of this article is to illustrate this predicament through examples derived from these restitution venues from both a substantive as well as an institutional perspective. Whereas issues relating to a substantive perspective have received some scholarly attention in recent years,Footnote 12 an institutional perspective has remained underexposed up until now. In the context of this article, the institutional perspective relates to the manner in which the advisory panels or bodies are established and operated. Both in the Netherlands as well as in the UK, this institutional perspective has recently become a subject of public discussion; therefore, it is time to also address it with respect to the predicament highlighted in this article.Footnote 13 It seems that this predicament could infringe on the public perception of the activities of these panels or bodies, which, in turn, could detrimentally affect their legitimate aim, which is to provide just and fair solutions.
IN BETWEEN TWO PARADIGMS: THE LEGALIST AND THE VICTIM GROUP-ORIENTED PARADIGM
The primary remedy concerning Nazi-looted art still seems to be restitution in kind.Footnote 14 This remedy of physical and actual restitution, especially when a substantial amount of time has passed, has been ascribed with a broader potential: one of recognition of past injustice while also serving as a means of historical narrative through a tangible way of dealing with past atrocities.Footnote 15 This basically means that the legal result in terms of property, which results in restoring the situation ex ante, is also topped with this extra layer.Footnote 16 Such restitution seems in line with the new victim group-oriented paradigm in remedying other Nazi-related injustices where recognizing and addressing the suffering caused by the traumatic nature of past crimes is the principal aim.Footnote 17 It is a departure from the strict legalist paradigm that adheres to a corrective justice mechanism and leads only to mere correction and the re-establishment of the ex ante situation.Footnote 18
A New Paradigm in Dealing with Nazi-Related Injustices, in General, and Looted Art, in Particular
Thérèse O’Donnell has specified this argument in the field of Nazi-looted art and argued that the road to restitution of cultural objects, especially due to the passage of time, seems to embody a symbolic value for claimants.Footnote 19 This argument relates of course to that of scholars arguing that the notion of “restitution of property” in the context of the Holocaust has obtained a completely different connotation. The Holocaust has been qualified in the Nuremberg trials as genocide, war crimes, and crimes against humanity. In this context, restitution is “dramatically” different in precedent and principle.Footnote 20 It is about the “inherent dignity and worth of every human,” and although restitution cannot restore lives, it “can seek to restore dignity.”Footnote 21 Similar observations have been made with an emphasis on the special and added value of cultural objects as opposed to other assets.Footnote 22 Contrary to financial compensation for insurance policies or dormant accounts, for example, restitution of cultural objects could add to the remembrance of the victim since these often embody a certain emotional or intangible value and represent some kind of reparation.
In this regard, Beat Schönenberger points towards the importance of the uniqueness of these assets and the invocation of what he describes as “emotive interests” for individuals and groups of people.Footnote 23 He goes as far as to claim that this emotive element separates Nazi-looted art cases from the issue of dormant accounts, which lack this symbolic significance.Footnote 24 Of further interest in this context is Berthold Unfried’s recent description of the Dutch restitution policy, especially in light of his analysis on the compensatory schemes in several European countries from the 1990s concerning Nazi-related injustices. Unfried introduced the term “rough justice” in his analysis of the French, Austrian, and Swiss commissions on financial compensation and the Dutch compensatory settlements at the turn of this century. He describes the development of “Entschädigungsforderungen, die nicht belegt, sondern nur ‘glaubhaft gemacht’ werden müssen.”Footnote 25 This development broadened the circle of eligible claimants compared to postwar restitution schemes. Furthermore, it resulted in standard amounts of financial compensation “unabhängig von der konkreten persönlichen Geschichte und von Konkreten Beweisen.”Footnote 26 With the term “rough justice,” Unfried refers to compensatory policies that abstract from concrete individual particularities and are based on a collective approach that addresses groups of victims. According to him, this “rough justice” approach has also affected restitution efforts in the specific category of Nazi-looted art. In taking the Netherlands as an example, he considers the policy to be “bahnbrechend im Sinne der Eröffnung einer neuen Restitutionsrunde nach neuer Logik.”Footnote 27
Tension between the Legalist and Moralist Paradigm in the Field of Nazi-Looted Art
Unfried’s qualifications are perhaps a bit too blunt, but they do indicate that the paradigm in addressing Nazi-related injustices concerning cultural objects has changed.Footnote 28 Whereas, in a strict legal sense, restitution simply means restoring the ex ante situation, it has also gained a different connotation that seems to result from the emphasis on a victim group-oriented paradigm. As Klaus Neumann and Janna Thompson have rightfully noted, in the context of grave injustices where a substantial amount of time has passed, the legalist paradigm is “challenged.”Footnote 29 This may best be illustrated by the various non-binding declarations regarding the issue of Nazi-looted art that rose to the surface in the late 1990s and onwards, the most important one being the Washington Conference Principles on Nazi-Confiscated Art, which were adopted in 1998.Footnote 30 These declarations clearly showed that the traditional legalist paradigm where the limitation process serves as a system was falling short in this context. The legalist paradigm, characterized by individual legal court-based assessments with the parameters set by statutes of limitations and rules concerning prescription inspired by principles of legal certainty and foreseeability, effectively barred a “just and fair solution.”Footnote 31
However, given that the primary remedy of restitution in the specific category of looted cultural assets, as opposed to other categories of looted assets, has not changed, tensions rise to the surface immediately when this issue is addressed. On the one hand, in regard to cultural objects with an often significant monetary, emotional, and historical value,Footnote 32 it seems impossible to completely discard the legalist paradigm, especially in countries such as the Netherlands and Austria where this paradigm has been followed in early attempts to address these dispossessions following World War II.Footnote 33 On the other hand, when the aim is to do justice to past suffering and look for solutions that are morally just and fair, as proclaimed by international documents such as the Washington Principles,Footnote 34 the need is felt for a generous approach, which necessitates disregarding legal obstacles so far as possible since these legal rules do not seem appropriate.Footnote 35 This tension between the legalist approach and the moral approach has caused, at least in some cases, an ambiguous public perception of the way in which these claims are dealt with. Moreover, this is especially complicated when claimants, inspired by the new paradigm, feel that justice has not been done.Footnote 36
NEW VENUES FOR CONSIDERING NAZI-LOOTED ART CLAIMS IN THE NETHERLANDS AND THE UK: THE RESTITUTION COMMITTEE AND THE SPOLIATION ADVISORY PANEL
In the introduction to this article, reference was made to the existence of several European committees that deal with Nazi-looted art, which are also frequently referred to as government advisory panelsFootnote 37 or (national) panels.Footnote 38 In the Netherlands as well as in the UK,Footnote 39 such bodies were established in what O’Donnell refers to as the “perfect storm.”Footnote 40 The issue of Nazi-looted art gained momentum after the fall of the Iron Curtain, with the opening of archives resulting from the renewed attention for World War II atrocities at various events and commemorative ceremonies.Footnote 41 Awareness was raised and became fueled by a substantial rise in restitution claims concerning Nazi-looted artFootnote 42 and publications by historiansFootnote 43 on what is known as “heirless art collections,”Footnote 44 namely publicly owned art collections with a Nazi-looting background.Footnote 45 It also became clear that due to the simple passage of time, the legalist paradigm, by way of its statutes of limitations and rules concerning prescribed periods, would be an obstacle to the successful pursuit of such claims.Footnote 46 Both in the NetherlandsFootnote 47 and in the UK,Footnote 48 the decision was taken to address the matter and provide for an alternative venue.
The Dutch Restitution Committee
General Features
In November 2001, the Dutch government decided to establish the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (RC).Footnote 49 Before discussing the mandate of the RC, I will first give a short description of the national context as it is necessary to properly understand the rationale of the RC’s establishment. The Dutch situation is marked by an heirless art collection that resulted from the first “round” of restitution conducted in the Netherlands in the immediate years following World War II. Footnote 50 The Netherlands, contrary to the UK, was occupied by Nazi Germany during the war, and after the war it was responsible for undoing the consequences of the occupation that had had a detrimental impact on the Dutch economy and its citizens.Footnote 51
With regard to the specific category of cultural objects, the Netherlands was not spared from the vast and systematic plunder and looting of artworks by Nazi Germany.Footnote 52 Large numbers of valuable cultural objects were shipped to Germany. This resulted not only from the systematic dispossession of the Jewish population in the Netherlands—thus, plain looting—but also from sales (whether voluntary or involuntary)Footnote 53 on an initially flourishing Dutch art market.Footnote 54 Although, initially, there were plans to embark on an international restitution process,Footnote 55 restitution (that is, the legal restoration of ownership rights) became an internal affair for the countries of origin.Footnote 56 Of course, although the 1943 Inter-Allied Declaration that promulgated a reversal of the looting, with specific reference to the “stealing and forced purchase of works of art,”Footnote 57 served as the guiding principle,Footnote 58 the exact design of the restitution process was at the discretion of the individual countries where the looting took place.Footnote 59 In the Netherlands, as well as in other European countries such as France and Austria, national restitution legislation was indeed enacted, aimed at the restoration of rights.Footnote 60 However, despite this legislation, a substantial number of objects could not, or were not, returned.Footnote 61 These objects were designated as Nederlands Kunstbezit Collectie (NK collection), consisting of some 4,000 items that ended up in the Dutch state’s care.Footnote 62
In the late 1990s, in the wake of a broader and more critical discussion focused on the process of restoration within the Dutch borders in the immediate postwar years, this NK collection became a subject of public discussion.Footnote 63 As in several other European countries,Footnote 64 the existence of such a collection of objects with a possibly tainted provenance residing in public hands was questioned.Footnote 65 As a reaction, the Dutch government decided to initiate government-funded research into the fate of Jewish assets during and after the war by instituting several research committees. In regard to the specific category of Nazi-looted cultural objects, the Committee Herkomst Gezocht/Origins Unknown was established in the fall of 1997.Footnote 66 This committee, also frequently referred to as the Ekkart Committee (named after its chairman), investigated the Dutch post-World War II efforts concerning looted art with a primary focus on the provenance of the NK collection. An important conclusion of the committee in April 2001 was that the Dutch postwar system of restoration of rights concerning the specific category of looted cultural objects, in line with the overall conclusion of the other government-installed committees, was executed in a “formalistic, bureaucratic cold, callous and often even heartless” manner.Footnote 67 Inspired by this general conclusion, the Ekkart Committee called for a more generous approach toward restitution claims.Footnote 68
Due to the simple passage of time, possibilities for restitution applications had lapsed decades before as the cut-off date for restitutions in the Netherlands was set at 1 July 1951.Footnote 69 Furthermore, the relatively short prescribed periods for making claims, as well as a Dutch civil law system that was generally favorable to good faith owners,Footnote 70 further complicated the traditional legal approach.Footnote 71 This led the Dutch government to decide to establish an advisory committee to issue advice on Nazi-looted art claims, by which it stated explicitly that it would embark on a policy-induced and generous approach rather than on one set by the traditional legalist paradigm.Footnote 72 The RC, which was established merely by a ministerial order,Footnote 73 was guided by policy rules that were largely based on the Ekkart Committee’s recommendations in this regard.Footnote 74 With this knowledge in mind, the actual task of the RC will now be discussed briefly. Based on Article 2 of the RC’s Establishing Decree,Footnote 75 the RC has a two-pronged purpose. It can issue both recommendations as well as opinions:
• A recommendation is issued to the minister and concerns claims on objects residing in the hands of the Dutch state. These objects not only comprise the NK collection, but they can also belong to “other possessions of the State of the Netherlands” or, rather, the Dutch national art collection as such.Footnote 76 A recommendation is merely given as advice to the minister and is not legally binding.Footnote 77
• Opinions are issued on “disputes concerning the restitution of items of cultural value between the original owner who, owing to circumstances directly related to the Nazi regime, involuntary lost possession of such an item and the current possessor which is not the State of the Netherlands.”Footnote 78 They mainly concern objects that are part of a collection of a provincial or municipal authority;Footnote 79 however, they can also include those belonging to a private (legal) person. These opinions are given in a special procedure called the binding-expert opinion procedure. To this end, regulations have been drawn up by the Committee, which will be addressed in depth later in this article.Footnote 80 The procedure basically aims to give the involved parties a final settlement of their dispute after a joint decision by both parties to call upon the RC.
A Stricter Policy as of 2012?
Until 19 July 2012, these two tasks of the RC had their own distinct policy frameworks. The RC’s task regarding the entire Dutch national art collection (the NK collection as well as other possessions of the state) was governed by a renewed and liberalized restitution policy, whose parameters were set by the Ekkart Committee’s recommendations in this regard.Footnote 81 Important features that marked the generous nature of the policy were the reversal of the burden of proof concerning the involuntariness of loss, which was presumed for individuals during the years of the Nazi regime, and relaxed standards of proof of ownership. The RC’s task concerning objects that did not reside in the hands of the Dutch state proceeded on the basis of a different framework governed by “principles of reasonableness and fairness,” as worked out in its regulations in this regard.Footnote 82 On the basis of this open policy, the RC “could” balance the interests of former and current owners and, for example, take into account the acquisition of a work in good faith by the current owner and also the importance of a work to the current and former owner as well as the interest of the general public.Footnote 83
As of 19 July 2012, this distinction was no longer applicable; the state secretary announced a policy change whereby the two tranches would become one uniform applicable policy for all objects.Footnote 84 The rationale for these changes was motivated in the following way. In 2001, at the time of the RC’s establishment, it was decided (out of the motivation for a more generous approach) to extend the liberalized policy to comprise not only the NK collection but also the entire Dutch national art collection.Footnote 85 However, due to the fact that this latter category of works of art was from a different background, often acquired “many years after the second World War through normal channels, such as purchase in good faith at an auction,” the need was felt in 2012 to give the RC more leeway to assess all relevant factors.Footnote 86 The liberalized restitution policy did not leave any room to take into account a possible good faith purchase by the state. When ownership was established to a reasonable degree of certainty and the involuntariness of the loss given, the RC had no option but to recommend restitution. Therefore, as of 19 July 2012, claims concerning objects from the Dutch national art collection (not the NK collection) were dealt with according to the principles of reasonableness and fairness.Footnote 87
The second tranche towards unification was set on 30 June 2015 as it was deemed that the liberal restitution policy “does not need to be drawn out indefinitely.”Footnote 88 From that date onwards, all claims, and, thus, also the NK collection, would be assessed on the basis of the principles of reasonableness and fairness. It must be noted, however, that the state secretary, when announcing the policy changes, specifically stated that the RC could still “take the specific provenance of works of art into account during the substantive assessment of a claim. This means that considerable weight will be given to the fact that a particular item comes from the NK collection.”Footnote 89
More or less parallel to this change was the entering into force on 1 July 2016 of the new Dutch Heritage Act.Footnote 90 This Act was not specifically written to deal with claims regarding Nazi-looted art, but it nevertheless affected the RC’s decisions.Footnote 91 The Act requires a recommendation from the so-called Protection Worthiness Assessment Committee (Toetsingscommissie Beschermwaardigheid or TCB) in the case of the disposal of a cultural object or collection when, in brief, it can be considered irreplaceable and indispensable to Dutch cultural heritage.Footnote 92 Depending on where in the public domain the object resides, Article 4.18 of the Heritage Act requires either the minister, the responsible provincial or municipal authority, or any other public body (for example, universities) to seek such advice.Footnote 93
The minister sought such advice for the first time in 2017 since the restitution request concerned an object residing in the Dutch national art collection; the recommendation was consequently addressed by the RC in weighing the interests involved.Footnote 94 The TCB did not consider the object irreplaceable and indispensable; however, it stressed its singularity and the visual attractiveness of the drawing, which rendered the disposal of the object a “great loss” to the public domain. The RC nevertheless concluded that the drawing’s importance for the cultural heritage of the Netherlands was limited. Still, it remains to be seen what would have happened if the TCB had answered this question in the affirmative. In answering questions in Parliament about the connection between the RC’s mandate and the Heritage Act in 2015, the minister emphasized that, in her opinion, restitution should remain the guiding principle when cultural objects “ended up in the wrong hands.”Footnote 95 Furthermore, the RC’s chair stated in 2015 that the 2012 policy change did not mean that the Ekkart Committee’s recommendations are “stored in the archives on 30 June 2015.”Footnote 96
However, in light of the changed rationale set forth in 2012, the public interest seems to have gotten the upper hand over remedying past injustices. This assumption could well be put into perspective in light of other (potential) consequences of this change in course in 2012 in terms of the solutions the RC has at its discretion. Until 19 July 2012, the distinction was as follows: recommendations can only amount to restitution, whereas opinions can entail all possible solutions the RC deems fit.Footnote 97 It seems that this distinction has been abandoned since the policy changes announced in 2012. Concerning objects belonging to the Dutch national art collection, the state secretary commented in 2012 that under “this new policy the Committee will also always be able to recommend restitution (unreservedly) of a tainted work of art, but it will also be able to recommend another satisfactory solution.”Footnote 98
The RC reiterated this idea in its 2015 annual report when addressing the policy changes in regard to the Dutch national art collection cases (non-NK collection works) and referred to the new “scope for recommending solutions other than the restitution of an item.”Footnote 99 How this will play out in practice is not yet clear as no cases have come before the RC in which this matter could be assessed.Footnote 100
The UK’s Spoliation Advisory Panel
In May 2000, the UK government established the Spoliation Advisory Panel (SAP).Footnote 101 Whereas the Dutch situation is marked by an heirless public collection, in the UK, the issue of Nazi-looted art centers around objects with a doubtful provenance, mostly acquired in good faith by museums.Footnote 102 The SAP was established as an independent alternative forum for claimants seeking restitution who most likely would be left empty-handed if they embarked on the traditional legal road.Footnote 103 It considers claims against UK public museums by people who lost possession of artwork during the Nazi era (1933–45).Footnote 104 The SAP’s “paramount purpose” is to achieve a just and fair solution for both the claimant and the institution; however, its subsequent recommendations are not legally enforceable.Footnote 105 Although the SAP does consider legal issues relating to the title of the object, it does not determine legal rights;Footnote 106 it proceeds on the basis of moral considerations and assesses the moral strength of a claim.Footnote 107 A subsequent recommendation is not legally enforceable on the claimant, the institution (respondent museum), or the state secretary; however, if a claimant accepts the recommendation, he or she is expected to accept the implementation of the full and final settlement of his claim.Footnote 108
Apart from restitution, the SAP has other remedies at its discretion in making recommendations. It can decide to award financial compensation, an ex gratia payment (by the state), or display alongside the object an account of its history and a reference to the claimant’s special interest in it.Footnote 109 It can furthermore advise the secretary of state, first, on action to be taken in “relation to general issues raised by claims” and, second, on actions to be taken in relation to a specific claim (for example, ex gratia payments).Footnote 110 Until 2009, there was no statutory recognition of the SAP, which changed with the establishment of the Holocaust (Return of Cultural Objects) Act 2009.Footnote 111 The main reason for these statutory changes was that in two cases restitution could not be effected after a recommendation thereto by the SAP, due to statutory impediments.Footnote 112 The Holocaust (Return of Cultural Objects) Act handed the Board of Trustees of the 17 institutions mentioned in Article 1 the discretionary power of deaccessioning objects after a recommendation of the SAP (referenced as the Advisory Panel in the Act) and the subsequent approval of the secretary of state.Footnote 113
Although the SAP was established in the context of the above-mentioned perfect storm and felt a “duty to do what the [UK] Government can to play their part in righting these historic wrongs,” it must be stated that the mandate of the SAP was rather broad.Footnote 114 It could consider claims concerning all acts of dispossession of cultural objects, not only those connected to Nazi persecution, provided that they occurred “during the Nazi era (1933–1945).”Footnote 115 In the case of the Beneventan Missal, the SAP indeed considered, although “not without hesitation,”Footnote 116 a loss of possession resulting from circumstances related to the chaotic state of war rather than Nazi persecution.Footnote 117 As others have pointed out, there is a certain ambiguity on the SAP’s use of its jurisdiction, especially in light of the context in which the SAP was established.Footnote 118 Thus far, however, the Beneventan Missal case has been the only abnormality, which suggests that the SAP’s mandate must first and foremost be seen in the context of remedying past Nazi-related injustices.Footnote 119
Comparing the Dutch RC and the UK’s SAP
This section will provide a few comparative remarks on the Dutch RC’s and the SAP’s mandates that one must bear in mind when the actual substantive and institutional predicament is discussed.Footnote 120 There are some important differences between both panels, which are mainly due to a rather different national context.Footnote 121 The rationale behind the SAP is a result of the need felt by the UK government to provide a venue to remedy historic wrongs in a situation where, from a legal perspective, the remedy of restitution is ultimately a decision to be made by the Board of Trustees of a respondent museum. Furthermore, there are no general (substantive) policy guidelines published apart from the SAP’s constituent documentsFootnote 122 since the SAP’s basic principle is to assess claims on a case-by-case basis.Footnote 123
In the Netherlands, the situation is different as the political impetus to act on the matter of Nazi-looted art is primarily related to a tainted public collection (the NK collection with a distinct “war record”).Footnote 124 In the Netherlands, at least until 2012, this was the main justification for the existence of two separate restitution policies (recommendations concern objects in the hands of the Dutch state and opinions concern objects owned by entities other than the Dutch state) on the basis of which the RC had to proceed. This has resulted, on the one hand, in different assessments. Under the liberalized Dutch restitution policy concerning recommendations, when the ownership of private individual owners is established with a reasonable degree of certainty and the involuntariness of loss is given (based on the loosened burden of proof), restitution follows, disregarding, for example, the interest of the public benefit in the continuous display of the object or the possible financial compensation for lost objects in the past by former owners or heirs.Footnote 125 Again, it must be stated that the liberalized policy not only concerned the NK collection, but, until 19 July 2012, was also extended to the entire Dutch national art collection. This arm of the policy differed in terms of rationale with that of the UK’s SAP since it was primarily designed to tie up existing loose ends inherited from the first round of restitution conducted during the immediate postwar years;Footnote 126 it was meant to be lenient towards individual claimants and heirs.Footnote 127
The second arm of the Dutch restitution policy seems more in line with its UK counterpart; the aim of the RC was to settle disputes as “a neutral third party.”Footnote 128 Coming to terms with its own past mistakes in relation to Nazi injustices seems not to be the main rationale; in the UK, it is to aid in assisting by providing a venue in which to address historical injustices. As for the future, it seems that the RC is headed in a direction that is even more in line with the UK’s SAP. The expectation is that the claims concerning the NK collection will “gradually dry up”Footnote 129 and that the coming years will see a rise in claims where parties other than the Dutch state will be asking for advice.Footnote 130 Therefore, it seems that there will be a shift in emphasis in the RC’s task from advising government on the national art collection (mainly the NK collection) to acting as an independent neutral party in the settlement of disputes involving works of art owned by parties other than the government.Footnote 131 This is even more underlined by the policy changes set forth on 19 July 2012; the assessment of all claims before the RC will take place on the basis of the principles of reasonableness and fairness in which several interests, including those of the respondent institution as well as the public interest, can be taken into account. How this will transpire exactly in assessments concerning state-owned objects and, more particularly, in those belonging to the NK collection remains to be seen.Footnote 132
SUBSTANTIVE QUANDARY: FLUCHTGUT, DOUBLE COMPENSATION, AND BALANCING THE INTERESTS
It seems that both from a substantive as well as from an institutional perspective, the committees dealing with restitution claims have been confronted with a predicament. This predicament is, to a large extent, caused by the primary remedy sought. Actual restitution in kind still entails an individualized, semi-legal assessment of the possible restoration of the ownership of a formerly owned specific subject. Thus, actual physical restitution of a claimed object is not something that can occur without answering vital questions that have a legal connotation, especially not when it involves cultural objects of significant and mostly monetary value. These questions touch upon what I refer to in this article as the substantive part of the new restitution venue: the recommendations issued by the restitution committees and, if available, their mission/policy statements. One cannot return a work without verifying whether the object that has been claimed is the one lost 60 years ago. This involves questions about evidentiary standards and what evidence should be insisted upon when the loss occurred over 60 years ago. The simple passage of time alone makes such an assessment very difficult. The mere notion of a just and fair solution induced by morality does not tell us how one should deal with criteria such as the involuntary loss of possession “due to circumstances directly related to the Nazi regime” in practice.Footnote 133 A broad explanation of that criterion on account of the strength or weakness of the causal link between persecution and loss, including, for example, sales made after a successful flight from the Nazi regime in order to support the livelihood of one’s family or even an accustomed standard of living, fits the new paradigm. However, this new paradigm brings about difficulties and a lack of clarity on how to classify or assess past events. Two points must be made in this regard.
The first point refers to my reference to an accustomed standard of living, which relates to the recent debate on the eligibility for restitution of cases most commonly referred to as Fluchtgut.Footnote 134 The debate on Fluchtgut or flight goods recently regained momentum when Cornelius Gurlitt bequeathed his collection, some of which was looted from Jews by the Nazis, to the Kunstmuseum Bern in Switzerland in 2014.Footnote 135 In Switzerland, Fluchtgut, as opposed to Raubgut,Footnote 136 is not eligible for restitution, and the Swiss have been criticized for this “artificial” distinction.Footnote 137 This distinction relates to the weak(er) quality—if it arguably exists at all—of the causal link between loss and persecution: Fluchtgut or flight goods concern sales made outside the direct control of the Nazi regime. Therefore, it revolves around the question of how broadly the notion of a forced sale should be interpreted when assessing the eligibility of a claim for restitution.Footnote 138 On the basis of examples derived from both the Netherlands and the UK, this sliding scale on the quality of the causal link will be illustrated.
In the Netherlands, claims concerning Fluchtgut can be considered on the basis of an assessment of the substantive criterion of involuntariness of loss. Based on the applicable policy, in the case of sales by private individuals, the involuntary nature of the loss is presumed when a sale occurred in Germany as of 1933, in Austria as of 1938, and in the Netherlands as of 10 May 1940, and, thus, this effectively results in a relaxation of the burden of proof in favor of individual claimants. The assessment of the Dutch RC in 2009 concerning the first case of the Semmel heirs (see discussion later in this article) in the context of a claim for an object belonging to the NK collection serves as an illustration on how this assessment transpires in practice. In this case, the Dutch RC held that Richard Semmel, a Jewish businessman, involuntarily lost possession of the artwork in order to finance his flight from the Nazi regime.Footnote 139 Despite some gaps in the provenance of the painting as well as uncertainty about the proceeds of the received sales, the RC deemed it most plausible that the painting was sold at an Amsterdam auction on 21 November 1933 in order to finance Semmel’s escape from Germany in April 1933:
It is unclear whether the painting was actually sold at this auction. The Committee assumes that if this was not the case, the painting was re-auctioned at a later date or sold privately, since the Committee’s investigation has shown that the painting was no longer in Semmel’s possession in March 1934. The Committee, therefore, considers the painting to have been sold in connection with Semmel’s flight, and deems, therefore, the loss of possession involuntary as a result of circumstances directly related to the Nazi regime.Footnote 140
Research into this case showed that Semmel left Germany in April 1933 and was included in the Amsterdam population register on 27 November 1933. The RC therefore found that it had been proven with a high decree of probability that the Semmel heirs lost possession involuntarily as it considered that the painting had to be sold “in connection with Semmel’s flight.”Footnote 141 Clearly, some questions still remain unclear, such as the exact date of the sale and the specific reason for the sale. However, infused by the new paradigm, these gaps can remain as such based on moral considerations rendering the RC’s conclusion of a sale “in connection to a flight” to be fair and just. It is a plausible line of reasoning, but the question remains how far this causal link can be stretched, and this will be illustrated with a recent case brought before the UK’s SAP.
In 2012, the SAP considered the British Museum/Koch claim in which the former owner sold a large collection of clocks at Christie’s auction house in 1939 after a successful flight from the Nazi regime to the UK. Ida Netter, widow of the late Otto Koch (she remarried in 1930 to Emile Netter), auctioned off part of the collection she had inherited “in order to have means to live.”Footnote 142 The clocks were thus sold not in order to finance a flight but, rather, to support the livelihood of the remaining family. The SAP found that this sale did amount to a forced sale. The founding document of the SAP, the Constitution, and the Terms of Reference, does not define this term. Therefore, since the SAP assesses claims on the basis of probabilities, it reasoned
that Mrs Netter would not have sold this collection when she did, had she remained in Germany and had the Nazis not come to power. In so finding, we do not rule out the possibility that she might, in any event, have sold the collection to fund the education of her children or her own way of life but we consider this to be a more remote prospect.Footnote 143
Restitution, however, was not awarded due to the fact that the SAP, in balancing the interests at hand, deemed that this sale was at the lower end of the scale of gravity.Footnote 144 The SAP deemed it to be a sale that was in nature highly different from those that were made either to pay for freedom or to sustain the “necessities of life.”Footnote 145 This opinion of the SAP can serve as an illustration of the core difficulties that occur when it comes to the matter of Fluchtgut, which are not resolved when one turns to morality for solutions since morality lacks clear and undisputed standards. How should one actually assess these cases since the causal link between loss and persecution is not there or, at the very least, is extremely weak?
A second thorny point in the substantive assessments made concerning restitution is the matter of German financial compensation received after World War II, which is primarily based upon the BrüG accords.Footnote 146 In this regard, it must be noted that different assessments have been made ranging from a broad explanation that disregards earlier compensations and explanations where the concept of unjust enrichment is a barrier standing in the way of restitution.Footnote 147 The claim for restitution by the Kurt Glaser heirs before the Dutch RC and the UK’s SAP is maybe one of the most pressing examples. Although both committees had the same set of facts to decide on, being that it was the same claimant as well as the same circumstances of loss of possession, the outcomes ended up being different. In the Glaser case before the UK SAP, the compensation was taken into account in the assessment of what amounted to a just and fair solution.Footnote 148 Although the SAP did conclude that Nazi persecution was the “predominant motive” for the sale, in light of the fact that the received proceeds from the sale reflected the market price at the time and that German compensatory payments were received after the war, restitution could not be afforded.Footnote 149 The SAP considered the moral strength of the case on the basis of all of the relevant circumstances and not merely the “causation.”Footnote 150 In the Dutch counterpart of this claim, double compensation was disregarded as a relevant factor by the Dutch RC.Footnote 151 Restitution was awarded in the case of the Glaser heirs before the Dutch RC, and in its opinion, the RC held:
that this settlement does not constitute an impediment in terms of the admissibility of the applicants regarding a claim to a work of art in the Dutch national art collection, given that the settlement did not entail a waiver of the rights to the lost work of art and the State of the Netherlands was not a party to it.Footnote 152
These different outcomes are the result of different approaches concerning the matter of double compensation. The lenient approach in the Dutch case seems to be inspired by the new paradigm, although the relevant national context must be borne in mind. The case of the Glaser heirs concerned an object that belonged to the NK collection. Due to the specific background of this collection, this factor only adds to a generous approach in which victims of historical injustices are treated in a favorable manner. The UK approach, on the other hand, indicates adherence to a legalist paradigm since its rather meticulous approach on received compensatory awards seemingly aims to prevent unjust enrichment of a claimant.Footnote 153 In any case, the different solutions show that on a substantial level one can definitely differ on what constitutes a just and fair solution, and they serve as an illustration of the predicament on a substantive level.Footnote 154 Furthermore, at the very least, these differences can cause feelings of uncertainty among claimants, especially in the case of the Glaser heirs dissatisfaction, which is not wholly incomprehensible in their case given the different rulings on the same set of facts.Footnote 155
The same difficulty can be perceived in the example used in the introduction to this article, which revealed the Dutch policy of balancing the interests of a museum against those of an individual claimant. Although the policy has changed into a uniform policy from 30 June 2015 onwards, with the consequence that all cases are now assessed on the principles of reasonableness and fairness, up-to-date examples of such an assessment are only to be found in binding expert opinions.Footnote 156 These binding expert opinions by the Dutch RC do reveal an effort to balance such interests. The claims of the Semmel heirs brought before the RC under this task can serve as an example in this regard. In two of these binding opinions, two of the Semmel heirs’ requests for restitution were rejected on the grounds that the works in question were too vital to a collection to be returned therewith, thus superseding the interests of the heirs in question or, rather, their emotional link to the claimed objects.Footnote 157
Unlike the Dutch RC, the UK’s SAP has not considered the emotional link of a claimant to a claimed object when considering restitution as a remedy.Footnote 158 In light of the criticism on the Dutch policy that was mentioned in the introduction, it is interesting that Charlotte Woodhead, in the context of the SAP, has argued in favor of such a consideration under referral to the Dutch Semmel case.Footnote 159 According to Woodhead, in circumstances where a claimant has no particular link to an object and is likely to sell after actual restitution, “there is an argument for saying that the Panel should balance this information with the public benefit that might be derived from the object.”Footnote 160 It has been argued that such different solutions or inconsistencies found in seemingly comparable individual cases could also be cause for a sense of injustice.Footnote 161 In this regard, Woodhead’s call for procedural and substantive principles in the UK is illustrative of the substantial quandary between the legalist and victim approaches. According to her, the point of departure of the UK’s SAP—that is, to advise on a case-by-case basis—can stain the perception of the legitimacy of the outcome. She therefore proposes a set of principles that are basically an elaboration of the principle of legal certainty, which is an argument that seems to be inspired by the traditional legalist paradigm.Footnote 162 Furthermore, she argues that the SAP should explicitly refer to the legal context in which the advice is made; according to her, it should be reiterated in one of those principles that the recommendations are made in the context of British legal principles and procedures.Footnote 163
The goal of her argument is thus clear: to prevent a sense of injustice, it seems that elements of the legalist paradigm are still needed. Current practice concerning Nazi-looted art claims is and remains a balancing act in which different assessments can be made based on the same set of facts. Although inspired by sincere motives, this balancing act might result in a slippery slope that could infringe on the perception of a just and fair outcome. Leaving the legalist paradigm completely behind seems impossible; however, how and to what extent it should be considered is clearly approached by both committees in a different manner.
A CLOSER LOOK: INSTITUTIONAL QUANDARY IN THE NETHERLANDS AND THE UK
This article’s final section concerns the institutional predicament that can be detected when one takes a closer look at the establishment of these committees and the changes that have been made over the years. Interesting in this regard are the recent semi-public reviews on the functioning of these committees that coincidentally took place both in the NetherlandsFootnote 164 and the UKFootnote 165 in 2015. The cause for these reviews seems to have been partly related to the protection of public interest in the individual cases that the committees were addressing. In the Netherlands, this again concerned the claims of the Semmel heirs, which were now under the binding expert opinion procedure, as well as the Tokkie case,Footnote 166 which shows to some extent important similarities with the UK’s Tate Gallery/Constable case.Footnote 167 Some of the questions raised in the Netherlands as well as in the UK seem to indicate that these committees were especially vulnerable from an institutional perspective and that this vulnerability resulted from their positioning in between these two paradigms. It also seems that in this institutional perspective these committees tend to oscillate between, on the one hand, policy-based, morality-driven loose proceedings (victim groups paradigm) and, on the other hand, a legal emphasis on notions such as independence and impartiality (traditional legalist paradigm). For reasons of clarity, I will provide a few remarks on the meaning of institutional perspective in the context of this article and then will discuss the position of the UK’s SAP and the Dutch RC.
In Brief: The Institutional Perspective
The institutional perspective concerns the (legal) instruments used to establish these commissions, their mandate, their composition, and the manner in which their members are appointed as well as procedure. There are certain similarities in the general characteristics of the institutional frameworks of the Dutch RC and the UK’s SAP that seem to be the main cause of their vulnerability, and this will be discussed later in this article. A common feature of both the Dutch RC and UK’s SAP is that they are government institutedFootnote 168 and financially dependent on public funding.Footnote 169 Furthermore, in both countries, the composition of these committees remains at the discretion of the executive; thus, members of the committee are appointed and re-appointed by the relevant government minister.Footnote 170 In addition, in the actual restitution procedure followed by the respective committees, the executive is involved to some extent. In the Netherlands, the founding decree stipulates that the RC’s formal involvement can only be activated after an assent or request of the responsible minister.Footnote 171 Additionally, when it concerns objects in the possession of the Dutch state (NK collection or non-NK collection), any positive recommendation by the RC has to be endorsed by the Dutch minister in order for the physical restitution to take place.Footnote 172 In the UK, a positive SAP recommendation to return an object from the national collectionFootnote 173 also requires the approval of the relevant government minister.Footnote 174
In the next section, some of the institutional vulnerabilities will be discussed on the basis of these two bodies’ caseloads. I have chosen to focus on more or less similar issues in this regard based on recent cases that primarily relate to a lack of procedural clarity and impartiality.Footnote 175
Institutional Concerns: The UK’s SAP
In a recent case brought before the SAP—the Tate Gallery/Constable case—aspects of institutional vulnerability rose to the surface. In this case, right after the SAP’s report was issued in which it recommended restitution, new evidence was brought forward. The Tate Gallery consequently revoked its decision to de-accession the painting to enable restitution due to the new facts, and neither the policy documentsFootnote 176 nor the Holocaust (Return of Cultural Objects) Act 2009 enabled the possibility of some sort of appeal or reconsideration.Footnote 177 The Tate Gallery therefore approached the minister directly since there was a lack of clarity on how to proceed in the matter. It was ultimately decided to ask the SAP to reconsider the claim in light of the new evidence.Footnote 178 Although the Tate’s Board of Trustees unanimously agreed to follow the SAP’s new recommendations in a second report, the 2015 review on the SAP indicated that there were legitimate concerns in this regard. According to the review, “there was widespread concern about ‘appeals’ or more accurately applications for reconsideration based on further evidence. Decisions on whether a claim should be referred back to the SAP are for the Secretary of State.”Footnote 179
The review stressed that the criteria for “re-referral” should at least be published, and it therefore pointed out a lack of procedural transparency.Footnote 180 The UK SAP’s review also paid attention more generally to a perceived lack of transparency or, rather, the “adequacy of public information,” as this issue was raised by “numerous consultees.”Footnote 181 Proceeding on the basis of morality and, thus, infused by the new paradigm ended up having its downfalls; it led to a situation where there were no clear guidelines on how to present a case before the SAP, leading to complaints about a lack of transparency and clarity. The same situation occurred with respect to the changes to the SAP’s Terms of Reference, which were made “without consultation or adequate promulgation.”Footnote 182
The review’s recommendations also displayed other aspects of institutional vulnerability. An expansion of the SAP was recommended—that is, that the SAP should no longer sit en banc on every claim. The review furthermore called upon the SAP’s chairs as well as the secretary of state to be particularly alert for perceptions of bias.Footnote 183 Clearly, these recommendations related to concerns about the impartiality of the SAP. In this regard, the Tate Gallery/Constable case could serve as an illustration. When the first report on the Tate Gallery/Constable case was issued in 2014, the Tate’s failure to properly investigate the provenance of the Constable painting was criticized by the SAP.Footnote 184 Although the decision of the state secretary to refer the case back to the SAP in light of new facts is understandable, one could question whether the SAP was the proper institution to review the case for a second time since its earlier critique of the Tate Gallery may have cast doubts on its impartiality. The critique of the Tate’s conduct in its provenance in the context of the claim was of course no surprise, as the SAP, on the basis of Article 7(g)) of its Terms of Reference, was obliged to consider whether any moral obligation rested on the institution in terms of provenance research and its conduct in this regard. In the meantime, the SAP’s Terms of Reference have been changed, as recommended by the 2015 review,Footnote 185 and the reference to the moral obligation of the institution has been dropped.Footnote 186 This change aims to clarify that the SAP’s review ought to prioritize evidence of spoliation rather than the conduct of an institution.Footnote 187 One could argue, in terms of this paradigmatic predicament, that this change emphasizes that the priority should be remedying past injustices. However, it remains to be seen whether this change effectively results in removing the adversarial angle in such disputes; to this point, no new cases have been brought before the SAP after the changes to its Terms of Reference.
Institutional Concerns: The Dutch RC
In the Netherlands, there was also a procedural lack of clarity concerning criteria on re-referral, which was (or attempted to be) addressed as early as 2011.Footnote 188 Since that year, in the case of “new facts” or “procedural errors that harm the applicants’ fundamental interests,”Footnote 189 a revision by the RC is possible.Footnote 190 These criteria must primarily be seen in the context of the RC’s task of issuing recommendations, as it proved in the course of 2010 that there was a need in this respect in relation to recommendations concerning the NK collection. However, it seems that the availability of these criteria has not solved the general concerns raised in the UK SAP’s review. It seems that these criteria enhanced this vulnerability rather than improving the institutional framework, at least in the case of the Dutch RC. In particular, the second criterion concerning procedural errors harming the applicants’ fundamental interests has given rise to problems in one of the claims of the Semmel heirs under the binding expert opinion procedure at the RC.Footnote 191
As explained earlier in this article, the Semmel heirs brought their first claim before the RC in 2009, regarding an object belonging to the NK collection, in which restitution was awarded. In the following years, other claims were brought before the RC that resulted in binding opinions as those objects were in the possession of parties other than the Dutch state.Footnote 192 One of these claims concerned an object that was in the possession of the municipality of Utrecht and on display at the Centraal Museum. In this case, the binding expert opinion given in 2013, which concluded that the object did not have to be restituted, was followed by legal proceedings.Footnote 193 The Semmel heirs contested the decision of the RC;Footnote 194 the circumstances of the loss of possession of the object in the 2013 claim were similar to those of the object for which restitution was awarded in 2009.Footnote 195 Their discontent was caused by confusion related to the two tasks of the RC, giving recommendations and giving binding opinions, and the different policies that were still applicable at that time to them. In contrast to the recommendation procedure, the interests of the respondent museum under the binding opinion procedure can be considered by the RC, which, in this case, caused the RC to reject the claim for restitution as it decided that the interests of the respondent museum outweighed those of the individual heirs due to distant family relations and a weak emotional link.
How then could these legal proceedings follow since the RC’s establishment was linked to the absence of available legal venues in the Netherlands? The answer is simple. In 2007, based on Article 4, section 2, of the RC’s Establishing Decree, it was decided that the RC’s opinionsFootnote 196 were legally binding pursuant to Article 7:900 of the Dutch Civil Code.Footnote 197 Although it is not clear what guided the RC (and the minister) in this choice, it may well have been the wish to have such disputes settled once and for all and thus seems (at least partly) to be inspired by the legalist paradigm. However that may be, although the relevant procedure requires the mutual consent of both parties to settle a case once and for all, Article 7:904 opens the possibility for judicial review of such binding expert opinions.Footnote 198 A judge can quash the opinion if its content is unacceptable by the standards of reasonableness and fairness.
The RC’s opinion concerning the Semmel/municipality of Utrecht’s claim was indeed quashed by the judge due to fundamental procedural errors. The judge consequently advised the Semmel heirs to take their case back to the RC.Footnote 199 In a public reaction to this judgment, the RC’s chair was quoted as being a bit “surprised” by the judgment.Footnote 200 This statement caused the Semmel heirs’ legal representative to ask the Dutch minister repeatedly to replace the entire committee since, according to him, the RC could no longer be perceived to be impartial. The lack of perceived impartiality is due not only to the statement of the RC’s chairman but also to the fact that the RC itself, consisting of the same members that gave the first binding expert opinion, should have judged themselves on these fundamental procedural errors.Footnote 201 From an institutional point of view, this is indeed problematic. Interestingly, the Dutch review of the RC’s functioning seems to underline this conclusion generally, as it stated that the modifications of the RC’s institutional arrangement should be considered in order to avoid any appearance of partiality.Footnote 202
Furthermore, when one studies the correspondence between the minister and the claimant as well as subsequent letters to Parliament, it is clear that the claimant’s complaints in this regard strongly indicate that this institutional vulnerability is mainly due to the fact that from an institutional perspective the position of the RC indeed oscillates in between two paradigms.Footnote 203 The Dutch RC seems to be perceived by the Semmel heirs as a judicial body, which it is not.Footnote 204 Especially when the RC was asked to issue a binding expert opinion, it was acting as a neutral third party with the intention of settling such disputes in an alternative dispute resolution process. The Semmel heirs’ confusion, though, seems at least partly caused by the fact that the RC, in its task of issuing binding expert opinions, is the only alternative forum available for claimants. From this perspective, the RC seems to have been acting in a manner that Norman Palmer discerns as “an adjudicator, imposing an ex cathedra determination,” which of course verges on a court-like situation.Footnote 205 Seen from this perspective, it is not entirely strange that claimants such as the Semmel heirs advanced arguments that one would normally advance if there was a concern regarding the impartiality of the judges in court.
Issues that were similar to those raised by the Semmel heirs were raised in the Tokkie case. The Dutch Tokkie case may illustrate that a lack of transparency adds to the previously discussed institutional vulnerability of restitution committees. The RC had issued a negative advice on the Tokkie heirs’ request for restitution due to evidentiary reasons. The claimant, in a television interview in November 2016, consequently claimed that there was a lack of (procedural) transparency at the RC due to a—purported—lack of publicly available information, which was also the case with the RC’s English counterpart.Footnote 206 This lack of transparency fueled subsequent doubts cast by Mr Tokkie, not only on the impartiality of the RC but also on its structural independence, especially in light of its strong ties with the Ministry of Education, Culture and Science. Mr Tokkie’s questioning of the structural independence and impartiality of the RC seems furthermore rooted in confusion related to the odd positioning of the RC—in between two paradigms. This confusion is best illustrated by the claimants’ letter sent to Parliament on 7 November 2016.Footnote 207 In the letter, Mr Tokkie stresses that the “Restitutions Committee should be available at all times” to him as a descendent of a victim of the Nazi regime (grandson). From his perspective, the victim group-oriented paradigm was disregarded because the procedure at the RC was “formalistic, bureaucratic and cold.” Furthermore, he criticizes the RC for maintaining its independence as a hindrance to the RC’s task of providing a venue for remedying past injustices. The RC should not “function as a court” but, instead, act as a mediator accessible to all parties. Mr Tokkie’s criticism was picked up by several newspapers, showing that the public perception of these committees can easily be adversely affected.Footnote 208
While the Dutch policy changes in regard to establishing one uniform policy going forward from 19 July 2012 were also motivated by the wish to avoid possible confusion by claimants,Footnote 209 it remains to be seen whether this uniform policy will solve this confusion.Footnote 210 Where the new venue in the Netherlands is indeed inspired by the victim group-oriented paradigm, it is undeniable that due to the passage of time family relations will become more distant and that moral claims will weaken due to this simple fact. This is even more complicated due to a trend in these cases, as recently recognized by the Dutch minister, where the “tone, content and complexity of restitution requests are changing” and that “procedures that were meant to be easily accessible” are increasingly “juridifying.”Footnote 211
CONCLUDING REMARKS
This article started by highlighting the continued attention that has been paid to the subject of Nazi-looted art. Though well over 70 years have passed since the Nazi atrocities, the two main ingredients of cultural objects with added special value and a tainted history that are a consequence of those atrocities combine to generate a continuing need for proper solutions when conflicts arise over cultural objects. On its own, the substantial amount of time that has passed already makes providing such solutions a difficult task. Since the turn of this century, in both the Netherlands and the UK, solutions have been sought by way of government-installed advisory bodies that aim to provide fair and just solutions. While claimants, without bodies such as the Dutch RC and the UK’s SAP, would most likely be left empty-handed due to the restrictions following from the legalist paradigm, these bodies have been subjected to criticism, particularly from claimants. These critiques seem to be linked to a predicament that exists for restitution committees in regard to the shift from a legalist to a victim group-oriented paradigm. On the one hand, these restitution committee foundations and their mandates originated in morality rather than in legality. The starting point for the newly founded venues, in both the Netherlands as well as the UK, are loose proceedings based mainly on policy documents, instead of being based on a proper legal foundation such as legislation. On the other hand, due to the special added value of the objects in question, which often relates to their monetary value in addition to their emotional and historical value, clear foreseeable rules concerning the eligibility of a claim as well as the manner of assessment are also necessary. The legalist paradigm, built upon rules that provide a certain predictability of proceedings and thus legal certainty, is essential. Proceeding on the basis of morality alone is not viable since the structure that comes from a legalistic approach is also required. It is this conundrum that creates the constant tension under which these committees have to proceed.
This article has shown furthermore that both this predicament can be perceived on both a substantive and institutional level when taking the Dutch and UK’s restitution committees as an example. From a substantive perspective, in order to achieve just and fair solutions, moral considerations are not enough to properly assess individual claims. For one, this article has illustrated some of the difficulties when assessing individual claims since they could infringe on principles of equality. One of the most pressing examples in this regard is the matter of the earlier-received compensation; whereas the Dutch RC disregards such compensation, the UK’s SAP does take it into consideration when assessing claims, which leads to different outcomes in similar cases. I agree with Matthias Weller in this regard that a solution can only be (perceived as) being just and fair when cases that are alike are treated equally and in a predictable manner.
The latter point touches upon the institutional predicament discussed in the last part of this article. Interestingly, in the Netherlands, as in the UK, it was felt that there was a need to review the institutional framework, and this resulted in semi-public reviews. Though officially not given as a reason, it seems that this need originated from criticism or at least public dissension over the lack of clarity in the institutional framework. Indeed, in both countries, there are some institutional weaknesses in the newly founded restitution venues that seem to be related to this institutional predicament. Driven by morality, the framework within which these bodies operate is intentionally downsized to mere policy documents or, in the case of the Dutch RC, a ministerial order lacking substantive rules. Indeed, something can be said for the lack of clear rules since it provides high levels of flexibility. However, this flexibility has a clear disadvantage: uncertainty. In both countries, uncertainty exists regarding the possibility of the review of an earlier recommendation or of advice given. Although the Tate Gallery/Constable case in the UK was eventually settled to the satisfaction of all involved parties, the 2015 review still demanded more clarity. The clarity given in this regard in the Netherlands, however, has still given rise to problems. Recently, it resulted in the Semmel heirs questioning the independence of the RC, and, in the case of the Tokkie heirs, the decision of the RC was criticized mainly for a lack of transparency. This criticism lies at the core of this article’s argument about the predicament of these committees—namely, that procedures for the newly founded venues that are too loose and lacking in clear procedural guidelines and proper instructions on restitution could potentially make it harder to arrive at a publicly and widely supported just and fair solution.
ACKNOWLEDGMENTS:
This article is based on an identically titled paper presented at the conference From Refugees to Restitution: The History of Nazi-Looted Art in Transnational and Global Perspective, which was held at Newnham College, Cambridge, United Kingdom on 23–24 March 2017. I am indebted to the organization of the conference for allowing me the opportunity to present this paper as well as to those who offered comments on earlier drafts. In particular, I must thank my supervisors, Prof. Wouter J. Veraart, Prof. Marc de Wilde, and Dr. Jan Herman Reestman, as well as Mhairi Letcher and Jacob de Boer. Last but not least, I thank the anonymous reviewers for their valuable comments. Any errors or omissions are, of course, the author’s own.
